This
case is before the undersigned pursuant to 28 U.S.C. §
636(c), Rule 73(b) of the Federal Rules of Civil Procedure,
and the consent of the parties, for all further proceedings,
including entry of judgment [Doc. 193].

Now
before the Court is the Defendants' Motion to Decertify
the Conditionally Certified Collective Action [Doc. 279]. The
Plaintiffs filed a Response [Doc. 298], and the Defendants
filed a Reply [Doc. 307]. During a status conference with the
parties on August 7, 2017, the parties stated that a hearing
on the Motion was not necessary. The Motion is now ripe for
adjudication. Accordingly, for the reasons stated below, the
Court finds the Defendants' Motion [Doc.
279] not well-taken, and it is
DENIED.

I.
BACKGROUND

By way
of background, the Defendants (collectively,
“Wyndham” or “Defendants”) provide
family destination vacations. [Doc. 60-1 at ¶ 3].
Customers purchase points that may be used for vacations at
Wyndham resorts or other locations. [Id.]. Wyndham
employs three groups of Sales Representatives: (1) Front-Line
Representatives, (2) In-House Sales Representatives, and (3)
Discovery Sales Representatives. [Id. at
¶¶ 4-5]. Further, relevant to the instant action,
Wyndham's Tennessee operations span four Wyndham
properties. [Id. at ¶ 12]. The Smoky Mountain
Region includes two properties located in Sevierville: The
Crossing and The Lodge. [Id.]. The Wyndham Nashville
and the Wyndham Resort at Fairfield Glade (“The
Glade”) comprise the other Tennessee region.
[Id.].

The
Complaint in this matter was filed on October 23, 2013. [Doc.
1]. The Complaint alleges that certain Sales Representatives
who worked at the Defendants' offices worked off the
clock and were not paid for working in excess of 40 hours in
a work week. [Id. at ¶ 2]. The Complaint
alleges that the Defendants willfully violated the Fair Labor
Standards Act (“FLSA”). [Id. at ¶
3]. The action was conditionally certified on August 21,
2014. [Doc. 84]. Specifically, the collective action was
defined as follows: Current and former non-exempt,
commission-paid: (1) Front-Line Sales Representatives, (2)
In-House Sales Representatives, (3) Discovery Sales
Representatives, who were employed in the Defendants'
Tennessee Resorts between October 21, 2010, to October 31,
2013.

After
the District Judge conditionally certified this action, the
parties spent several months disputing over the proposed
notice and opt-in form. The District Judge entered an Order
with respect to the appropriate notice and opt-in form on
June 1, 2015. [Doc. 125]. Subsequently, on May 31, 2016, the
parties consented to the undersigned for all further
proceedings. [Doc. 193]. The undersigned set a scheduling
conference, but it was continued so that the parties could
participate in mediation. [Doc. 197]. The mediation was
unsuccessful, and the Court conducted a scheduling conference
with the parties on September 15, 2016. [Doc. 202]. During
the scheduling conference, the parties stated that they had
agreed to allow the Defendants an additional twenty-four (24)
depositions. [Doc. 203]. The Court also set a hearing to
address sample representation and allowed the parties to file
briefs regarding the appropriate sample representation.
[Id.].

At the
hearing, the Plaintiffs proposed a sample representation of
two groups: (1) opt-in Plaintiffs who worked as Sales
Representatives at one of Defendants' four Tennessee
resorts for more than six months (Group 1); and (2) opt-ins
Plaintiffs who worked as Sales Representatives at one of the
Defendants' four Tennessee resorts for less than six
months (Group 2). Through random sampling, Group 1 consisted
of 35 Plaintiffs (out of 139 opt-in Plaintiffs), and Group 2
constituted of 13 Plaintiffs (out of 25 opt-in Plaintiffs).
Thus, both groups represent 25% and 50%, respectively. At the
hearing, the Defendants argued that there should not be any
sample representation in this case. The Defendants continued
that they should be permitted to take each and every
Plaintiffs' deposition. After hearing from both parties,
the Court limited discovery to the Plaintiffs'
representative sampling because it appeared to be “fair
and proportional to the needs to the case” and would
“minimize the burden of Plaintiffs and their counsel
while still allowing the Defendants an opportunity to depose
these alleged representative Plaintiffs to determine the
similarity and ability to serve as representatives and/or to
determine if there is any basis to their various
defenses.” [Doc. 215]. The Court continued:

Once the parties complete discovery of the representative
Plaintiffs, if the Defendants contend that either the
Plaintiffs' claims or the Defendants' defenses are
too distinct or too individualized to permit this subset of
representative Plaintiffs to be used to establish a
collective class action and/or liability and/or damages, then
Defendants may move for either additional discovery beyond
the representative list and/or try to establish class
decertification.

[Doc. 215]. Later, and because the Defendants had earlier
agreed with the Plaintiffs to take only twenty-four
additional depositions, the Defendants moved the Court to
allow them to depose the remaining members in the
Plaintiffs' sample representation. The Court granted
[Doc. 254] the Defendants' request.

The
Defendants have now moved for decertification.

II.
POSITIONS OF THE PARTIES

The
Defendants argue [Doc. 279] that this case cannot be tried as
a collective action, citing the Supreme Court's decision
in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.___, 136
S.Ct. 1036 (2016) (hereinafter, “Tyson”)
and because the Plaintiffs cannot establish that they are
similarly situated. With respect to the former argument, the
Defendants assert that Tyson compels
decertification. The Defendants argue that pursuant to
Tyson, the Plaintiffs must present evidence that is
both the same across the class and sufficient to prove the
individual claim of each employee in an individual lawsuit.
Further, the Defendants contend that with respect to
“so-called representative testimony, ” it must be
admissible under the Federal Rules of Evidence. The
Defendants assert that the Plaintiffs' purported
representative sample is statistically inadequate. Further,
the Defendants submit that the Plaintiffs cannot satisfy
Tyson's requirements that the “so-called
representative evidence” must be sufficient to prove
the claims of each of the 167 employees in individual
lawsuits.[1] Finally, the Defendants assert that the
Plaintiffs cannot show that they are similarly situated under
the stricter standard to be applied by the Court at this
stage of the litigation.

The
Plaintiffs respond [Doc. 298] that Sixth Circuit precedent
supports this action being tried as a collective action.
Further, the Plaintiffs state that decertification is
unwarranted because the evidentiary record overwhelmingly
confirms that the Plaintiffs are similarly situated. The
Plaintiffs explain that they are similarly situated in their
factual and employment settings and that the Defendants'
defenses are assertable on a collective basis. In addition,
the Plaintiffs contend that fairness and procedural
considerations favor proceeding collectively. Finally, the
Plaintiffs argue that the Defendants mischaracterize
Tyson, they erroneously rely on inapplicable Rule 23
standards, and they ignore the Supreme Court's decision
in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946).

The
Defendants filed a Reply [Doc. 307], stating that Sixth
Circuit case law does not compel a denial of the Motion to
Decertify. The Defendants contend that the cases cited in the
Plaintiffs' Response are both factually and procedurally
inapposite to this case. The Defendants argue that the
Plaintiffs are not similarly situated in their factual and
employment settings. In addition, the Defendants assert that
their defenses require an individualized inquiry and that
procedural and fairness considerations weigh in favor of
decertification. Finally, the Defendants reply that they have
not mischaracterized Tyson and that they did not
ignore the decision in Mt. Clemens.

III.
ANALYSIS

The
Court has considered both parties' positions, and the
Court finds the Defendants' request for decertification
not well-taken for the reasons further explained below. The
Court will begin with an overview of the FLSA and then turn
to the Defendants' arguments for decertification.

A.
Overview of the FLSA

The
FLSA directs that an employee or employees may bring an
action “against any employer (including a public
agency) in any Federal or State court of competent
jurisdiction . . . for and in behalf of himself or themselves
and other employees similarly situated.” 29 U.S.C.
§ 216(b). However, “[n]o employee shall be a party
plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in
the court in which such action is brought.” 29 U.S.C.
§ 216(b).

A
plaintiff alleging a FLSA violation can bring a
representative action for similarly situated persons if the
plaintiffs meet two requirements: “1) the plaintiffs
must actually be similarly situated, and 2) all plaintiffs
must signal in writing their affirmative consent to
participate in the action.” Comer v. Wal-Mart
Stores, Inc.,454 F.3d 544, 545 (6th Cir. 2006)
(citations omitted). An FLSA representative action is called
a collective action and is different from a class action
brought pursuant to Rule 23 of the Federal Rules of Civil
Procedure, in that it utilizes an opt-in mechanism rather
than the opt-out mechanism employed under Rule 23. See
Id. Further, the FLSA “similarly situated”
standard is less stringent than the predominance inquiry
typically applicable to class certification disputes under
Rule 23(b). O'Brien v. Ed Donnelly Enters.,
Inc.,575 F.3d 567, 584 (6th Cir. 2009), abrogated
on other grounds by Campbell-Ewald Co. v. Gomez, 136
S.Ct. 663 (2016).

Proceeding
as a collective action furthers several important policy
goals. First, the collective action “allows . . .
plaintiffs the advantage of lower individual costs to
vindicate rights by the pooling of resources.”
Hoffmann-La Roche Inc. v. Sperling,493 U.S. 165,
170 (1989). Second, “[t]he judicial system benefits by
efficient resolution in one proceeding of common issues of
law and fact arising from the same alleged discriminatory
activity.” Id.

In an
FLSA action, “[t]he district court may use its
discretion to authorize notification of similarly situated
employees to allow them to opt into the lawsuit.”
Id. at 169. Typically, courts have utilized a
two-phase process in determining whether the proposed
plaintiffs are similarly situated. The first phase takes
place at the beginning of discovery, and the second phase
occurs after opt-in forms have been disbursed and returned
and discovery has been completed. See Comer, 454
F.3d at 547.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
instant case is at the second stage, which courts apply a
&ldquo;stricter standard.&rdquo; See Id. Named
plaintiffs &ldquo;bear the burden of showing that the opt-in
plaintiffs are similarly situated to the[m].&rdquo;
O&#39;Brien, 575 F.3d at 584 (citation omitted). The
second stage follows discovery, so the Court &ldquo;has much
more information on which to base its decision&rdquo; and
&ldquo;examine[s] more closely the question of whether
particular members of the class are, in fact, similarly
situated.&rdquo; Comer, 454 F.3d at 547 (citation
and internal quotation marks omitted). To avoid
decertification, the named plaintiffs must introduce
&ldquo;substantial evidence&rdquo; that the opt-in plaintiffs
are similarly situated.&rdquo; Frye v. Baptist Mem&#39;l
Hosp., No. CIV. 07-2708, 2010 WL 3862591, at *2 (W.D.
Tenn. Sept. ...

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